John McKinley

“ Acting upon this view of his affairs, is it at all surprising that he should have inserted in his will, even by interlining, the words, 'for the use and benefit of all my heirs,' that being the reason which induced him to charge the debts upon the town lots?
But putting out of view all extraneous considerations, can the construction given by the court to this part of the will be sustained upon principle? Executors have no authority to sell real estate, unless the power to sell, and the purpose of the sale, are expressed in the will. ”

“ The defendant in ejectment can never defend his possession against the plaintiff upon a title in himself, by which he could not recover the possession, if he were out, and the plaintiff in possession. Reversing the positions of the parties in this case, could the defendants, if plaintiffs, recover the land in controversy upon this decree, and evidence of possession under it, against the title of the plaintiffs? We have no hesitation in saying they could not; and, therefore, the decree, if founded upon a valid equitable title, would be no legal bar to the action of the plaintiffs. ”

“ With all due respect for that distinguished tribunal, we are constrained to dissent from the general proposition they have laid down on the subject of demand and presentment, and from all their reasoning in support of it. Due diligence is a question of law; and we think we have shown, by abundant authority, that the holder of an accepted bill, to fix the liability of the drawer or indorser, must present it to the acceptor and demand payment thereof. ”

“ When the United States accepted the cession of the territory, they took upon themselves the trust to hold the municipal eminent domain for the new states, and to invest them with it, to the same extent, in all respects, that it was held by the states ceding the territories.
The right which belongs to the society, or to the sovereign, of disposing, in case of necessity, and for the public safety, of all the wealth contained in the state, is called the eminent domain. ”

“ By a statute of Alabama, it is enacted, that every joint promissory note shall be deemed and construed to have the same effect, in law, as a joint and several promissory note. And whenever a writ shall issue against any two or more joint, or joint and several, drawers of a promissory note, it shall be lawful, at any time after the return of the writ, to discontinue such action against any one or more of the defendants on whom the writ shall not have been executed; and to proceed to judgment against the others. ”

“ And all constitutional laws are binding on the people, in the new states and the old ones, whether they consent to be bound by them or not. Every constitutional act of Congress is passed by the will of the people of the United States, expressed through their representatives, on the subject-matter of the enactment; and when so passed it becomes the supreme law of the land, and operates by its own force on the subject-matter, in whatever state or territory it may happen to be. ”

“ And a surveyor going on the land to ascertain the boundary of a quarter, or half-quarter section, would do it with as much ease and certainty as if it had been delineated on the plat by the surveyor-general. Extending the subdividing lines on the township plats, is not, therefore, essentially necessary to enable the register to sell the land, or to give title to the purchaser. The register is as much bound to know what is a legal subdivision of a section, or fractional section, as is the surveyor-general. ”

“ If the testatrix had no knowledge of the existence of usury in the contract between the defendant and Alexander, the bond which she gave to the defendant, although without valuable consideration, was not usurious. There must be a loan, and the taking of more than legal interest, or the forbearance of payment of a pre-existing debt, upon a contract for illegal interest, to constitute usury. Barclay vs. Walmsley, 4 East, 57. The fact of knowledge, in the plaintiff's testatrix, is very material ”

“ If the action properly lay upon the deed of trust, to which there appears to have been no objection made, it was proper that the notes, which were included in the deed and made a part of it, should have been read to the jury. The third and only remaining exception is, to the offer on the part of the defendant to prove, under the plea of general denial, a violation of the contract sued on, by the plaintiffs, before the commencement of the suit; and a failure, on their part, to comply with its stipulations. This evidence was objected to by the plaintiffs, and excluded from the jury by the Court. ”

“ No rule made by a district judge will, therefore, be recognised by this court as binding, except those made by district courts exercising circuit court powers. The statute of Mississippi, taking away the right to a writ of error, in the case of a forthcoming bond forfeited, can have no influence whatever in regulating writs of error to the circuit courts of the United States; a rule of court adopting the statute as arule of practice would, therefore, be void. ”

“ Now we have a right to infer, from the facts proved, that all the land included in Croghan's patent, and all the river bottom above Mayfield creek, at the date of the entry, was a dense cane-brake; because, if an object, permanent in its nature, is proved to exist at the time of the trial, it is fair to infer that it existed at the time the entry was made. ”

“ Aware of the difficulty of sustaining their opinion, if the same rule of evidence applied to the statements of the notary that would apply to the same statements on oath by a private individual, they say he is a public officer, and it is not to be presumed that he would do so useless an act as to go to the house of the acceptor and demand payment if he had not the bill with him, and that the law will presume the notary had done his duty. ”

“ To this we answer, 1st, that no title, emanating from this or any other government, for lands now within the United States, can claim immunity from investigation and adjudication in the courts. And if the wilful wrong or mistake of the ministerial officers of government, or the fraud and misrepresentation of the donee or grantee, has induced the issuance of a patent to one who, by the laws and policy of the government, was not equitably entitled to receive it, the court may, as they perpetually do, redress the wrong. ”

“ In suits against indorsers of foreign bills of exchange, the only legal evidence to prove the presentment of the bill and demand of payment is the protest. In regard to the drawer, if he had no funds in the hands of the drawee no protest is necessary, and an explicit promise to pay by an indorser may waive the necessity of a protest; but without such express waiver, a protest is the only evidence of presentment and demand known to the law. ”

“ There is no principle better settled in the land law, than that the calls in a survey and patent are not affected by quantity. If no private and paramount right be interfered with, whether the survey and patent contain more or less than the quantity called for, it is equally valid. An entry cannot call for a greater number of acres than is authorized by the warrant on which it is made ”

“ While the president of the United States is authorized, in particular cases, to appropriate portions of the land, for the purpose and use of the government, no such right or privilege is given to the head of the treasury department. ”

“ No man is bound to take advantage of a penal law, and avoid a contract which it equity he ought to perform; and nothing could excuse the defendant, but his giving express notice to the plaintiff that he, the defendant, did not mean to pay the note.'
The present is a much stronger case for the plaintiffs than the one just quoted. The defendant, as before stated, knew all the facts of the case; she had paid, at different times, parts of the debt; nearly five years had elapsed from the date of the contract till its final payment ”

“ That portion of sovereign power which is vested in the United States by our Constitution and laws is unlimited.
2. The exercise of power by any department or functionary of the government, as among and operating on ourselves, is limited.
3. The sovereign power as a nation in its foreign intercourse is subject to no constitutional restraint.
But it is contended, that the right to the shore is a sovereign and political, not a proprietary right. In what the distinction exists, so far as it is applicable to this controversy, has not been explained, and is not easy to be understood. ”

“ Palpable mistakes in the entry, such as a call for east instead of west, which is apparent by other calls in the entry, may be corrected. But where there is no mistake or uncertainty in the calls, to vary them is to make a new entry. This, I conceive, no court has power to do. An entry, like every other instrument of writing, must be construed by the words used. And these words can never be extended, by construction, so as to infringe upon subsequent and bona fide entries. ”

“ As soon as information reached the general land-office, of Fitzgerald's application, the register was informed that 'the secretary of the treasury had directed that tract of land to be reserved from sale, as it was important for the use for the customhouse, at New Orleans.' This language has evident reference, not to a reservation then first made, but to one that had been previously made, for a well-ascertained object, of which the importance was fully recognised and already known. ”

“ It is essential, to constitute a legal demand of payment of a bill or note, that it should be presented to the acceptor at the time the demand is made, or, in other words, that the person who makes the demand should have the bill with him. ”

“ That there is an immense body of lands in all our alluvial territory from the North river to the Sabine, including the meadows between Newark and New York, those on the Delaware, the rice plantations of Carolina and Georgia, the marshes of Florida, the swamps of Louisiana, is a matter of fact. ”

“ The refusal to pay in this case, when payment was demanded, may have been predicated upon the fact, that the notary did not have the bill. Every fact stated by the notary in this protest may be true, and yet no dishonor of the bill have occurred on which to charge the indorser. The protest must show every act to have been done that is necessary to charge the indorser, and can leave nothing to inference or intendment. If every fact stated in this protest might be true, and the bill itself never have been exhibited or shown for payment, the proof is insufficient. ”

“ If those departments, which are intrusted with the foreign intercourse of the nation, which assert and maintain its interests against foreign powers, have unequivocally asserted its rights of dominion over a country of which it is in possession, and which it claims under a treaty ”

“ The forms of protest vary in different countries. They vary in different States. They vary in the same State. They must necessarily adapt themselves to the true circumstances attendant upon the dishonor of bills and notes.
The acts of public officers are favored to the extent that they are presumed to know their duty, and to do their duty, unless the contrary appears. A notary has no right 'to demand payment,' in the absence of the security which attests the party's liability, or without its presentment ”